Tough questions asked about JSC’s role in extending tenure of Zim’s retired CJ

21 May 2021 · Carmel Rickard

The drama of Zimbabwe’s ‘judicial amendment’ is far from over. This week, two separate letters demanding information were sent to the judicial service commission, asking for details about the JSC’s role in considering or facilitating the extension of retired Chief Justice Luke Malaba’s tenure. The week also saw the government trying some damage control in the wake of the extraordinary statement issued by the minister of justice after the high court declared that Judge Malaba’s extension of office was invalid and that his retirement had begun on his 70 th birthday.

What, exactly, was the part played by the judicial service commission in facilitating another five years in office for Zimbabwe’s controversial former Chief Justice, Luke Malaba? And, since he was a kingpin in the JSC, did he declare a conflict of interest and excuse himself from any discussions on the matter?

These and other potentially embarrassing questions have been asked of the JSC by two firms of lawyers this week.

In making the decision to extend the tenure of a senior judge by a further five years, the President is supposed to consider the recommendation of the JSC. This is a feature of the dispute seized on by activist Namatai Kwekweza, and her lawyers, Scanlen & Holderness, have asked the JSC a number of questions probing this aspect.

Abstained

Was a meeting held by the JSC to consider whether to recommend extending the tenure of the then Chief Justice? Was a resolution taken to make such a recommendation? If so, Kwekweza’s lawyers ask for a copy of it. They also want to know how the JSC members voted on the question and whether anyone abstained from voting. They further question whether the then CJ declared that he was ‘conflicted’ in relation to this decision?

The lawyers also had a number of questions about a telling issue that arose in argument of the case last weekend: the JSC successfully requested to be admitted as a party in opposition to the litigation aimed at a declaration that the CJ could not continue beyond his 70^th birthday. Moreover, the JSC stated that it represented the judges cited in the litigation. Did the JSC have a meeting to consider whether to take these steps, the lawyers asked.

Consequence

If it met to consider joining the case, where and when did it do so? If it did not meet, did the JSC consider that a ‘general resolution’ was enough to empower its secretariat to decide on a course of action in a matter of ‘such consequence’? On the other hand, if it met and passed a resolution to join the litigation, how did the individual members vote on the question, and did the then-CJ declare a conflict of interest and abstain from voting?

Did the JSC pass a resolution that a JSC lawyer would represent the judges cited in the litigation? If so, was there any consultation with the judges concerned, how were they consulted, and how did the judges line up on the question?

The sting in the tail of the string of questions was this: an ‘immediate response’ was requested under the Freedom of Information Act, and the JSC’s attention was drawn to its ‘obligations under section 191 of the Constitution which requires that you conduct your business in a just, fair and transparent manner.’

Probes

As if that were not enough, a second batch of questions was sent to the JSC, this time from Honey & Blackenberg, acting for the Young Lawyers Association of Zimbabwe, one of the parties to last weekend’s case. This also probes the consultation process in which the JSC should have been involved before the President decided whether to extend the tenure of the former CJ.

They specifically request the letter written by the then-CJ to the President, applying for his tenure to be extended, together with any annexures. In the view of the lawyers, such a letter would have to have been seen and considered by the JSC to comply with the ‘consultation’ provisions.

They further want a copy of the President’s reply, ‘confirming his intent to accept this extended tenure and any reasons therefore, together with the medical report referred to in the letter.’ [This is a reference to a medical report required as a key part of the process to extend the tenure of office of a judge.]

Minutes

Furthermore, the lawyers require confirmation that in fact a consultative process did take place between the President and the JSC. If so, where and when did it happen and which commissioners were present? In addition, if such a meeting in fact happened, they request the minutes of who attended and, if outsiders were also present, the basis on which they participated or accompanied the President during such a meeting. Finally, they ask what recommendations and/or comments the JSC commissioners may have submitted to the President as part of the consultation.

If, on the other hand, no such consultation took place, they require that this confirmation be provided in writing.

Again, this list of questions was accompanied by reference to the constitutional principles of ‘good governance’ and the requirements of ‘transparency, justice, accountability and responsiveness’, along with the right to administrative justice.

Cited

On the same day there was another development: the long-delayed appointment of five judges to the constitutional court was announced and the judges sworn in by Acting Chief Justice Elizabeth Gwaunza, previously the deputy CJ, who has taken the place of retired CJ Malaba.

The five are Justice Rita Makarau, Justice Paddington Garwe, Justice Bharat Patel, Justice Ben Hlatshwayo and Justice Anne-Marie Gorowa. All five had served on the constitutional court as acting members. They were also among the judges cited in the urgent application brought to test the validity of the former CJ’s extended tenure of office.

Local media note a significant twist in the story concerning Judge Happias Zhou. According to this report, former cabinet minister Jonathan Moyo had raised concern about aspects of the selection of the five judges who would be appointed to the constitutional court. According to a Tweet by Moyo, at a meeting last year, the JSC had ranked Judge Zhou as third of the five candidates who should be appointed, but President Emmerson Mnangagwa rejected Judge Zhou and would not appoint him.

‘Respected’

This is the same Judge Zhou who presided in last weekend’s dramatic hearing to test the validity of the extension of office of former CJ Malaba. Further, when the minister of justice, Ziyambi Ziyambi, released a statement after the court’s finding was made known, he seemed to take particular aim at Judge Zhou for being against the government.

Finally, the week also saw at least two other statements from government, apparently at odds with the extraordinary diatribe from Ziyambi. In one, the ‘ministry of justice’, via the secretary for justice, legal and parliamentary affairs, said the government ‘strongly believed in the independence of the judiciary’ and that it ‘respected’ the principles of the separation of powers.

However, having considered the high court’s judgment, it had reached ‘a different view’ and had thus ‘taken measures’ to have the judgment set aside.

Scepticism

A second such conciliatory statement, made in the name of the President himself, insisted that, in Zimbabwe, the independence of the judiciary was ‘vital to the survival of our democracy’.

‘When our courts speak, all Zimbabweans should listen,’ said the statement. ‘The government of Zimbabwe wholeheartedly respects the independence of our judiciary.’

These two statements were met with considerable scepticism by human rights activists.

Carmel Rickard

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